CONGRESSIONAL PITCH COULD CHANGE GAME

CONGRESSIONAL PITCH COULD CHANGE GAME
By CHRISTOPHER KILBOURNE
Staff Writer
The collapse of the 1994 season could topple baseball from its unique perch beyond the reach of federal antitrust laws that govern other sports and industries.
Legislation pending in Congress, including a quixotic attempt to revive the current season, would modify or eliminate baseball’s 72-year-old antitrust exemption. The House Judiciary Committee will hold hearings on the matter next week, and though previous attempts to lift the exemption have failed, legislators are talking as if they mean business this time.
Judiciary Committee Chairman Jack Brooks, D-Texas, has denounced the exemption for contributing to “a recurring pattern of strikes, lockouts, and bad-faith collective bargaining.” And President Clinton indicated Wednesday that he will ask the Justice Department to take a close look at the exemption.
Labor and antitrust experts generally agree that removing the exemption would strengthen the players' bargaining position and possibly help resolve the strike. But the long-term consequences are unclear, and some say the move might not be all that lawmakers -- and long-suffering baseball fans -- are hoping for.
“The antitrust laws are not a panacea for the fans,” said Stephen M. Axinn, a New York lawyer whose firm, Skadden, Arps, Slate, Meagher, & Flom, has represented the National Football League, National Hockey League, and National Basketball Association in antitrust matters.
Antitrust laws were designed to preserve a competitive marketplace by prohibiting monopolies and attempts to monopolize, as well as contracts and conspiracies that restrain trade. Baseball’s immunity from those rules is an anomaly, experts say -- the result of a quirky court decision from a bygone era.
The exemption has given baseball owners the upper hand over the years, largely because it has allowed them to join forces in their dealings with players. That advantage has been tempered only recently by a strengthened players union and collective bargaining.
In theory, eliminating the antitrust exemption could make professional baseball a wide-open marketplace, with players selling their services to the highest bidder for as long -- or as short -- a period as they wanted. That could open the door to a “tremendous competitive imbalance,” with wealthy teams buying up the best talent and dominating teams in smaller markets, Axinn said.
But most experts say the chance of that happening is almost nonexistent. Economic realities would force the players and owners to agree to player drafts, reserve clauses, and restrictions on free agency much like those already in place, they say. Such limitations on competition are permissible under antitrust laws if players and owners agree to them.
Sports leagues that are not exempt from antitrust laws have instituted those measures, and some, including the NFL and NBA, have gone a step further, creating salary caps that limit teams' total payrolls.
Baseball owners also want to impose a salary cap. The difference is that with their immunity from antitrust rules, they would not have to negotiate the size of the cap with players or give the players anything in return.
The bottom line, said George Hay, a professor of law and economics at Cornell Law School, is that eliminating the exemption would put baseball on the same footing as other professional sports, and “you don’t notice a lot of difference in those leagues.”
“If you asked me what baseball would be like 10 years from now without the antitrust exemption, I don’t think it would look dramatically different than it looks today,” Hay said.
One area where the change might have an impact is non-personnel moves by owners, such as relocating franchises, he said. Without the exemption, the owners probably could not have blocked the sale of the San Francisco Giants to investors who wanted to move the team to St. Petersburg, Fla., experts said. Two of those investors are suing baseball in federal court claiming, in part, that the antitrust exemption is unconstitutional.
The U.S. Supreme Court ruled in 1922 that baseball is immune from antitrust laws because it is not a part of interstate commerce. The ruling drew immediate criticism that has persisted ever since, Axinn said.
The high court nearly reversed itself in 1972, when it decided Curt Flood’s suit against Major League Baseball. The justices stopped short of that, but stressed that Congress was free to remove the antitrust exemption.
Players began achieving a measure of equal bargaining power in the 1970s when Marvin Miller turned the players union into a force to be reckoned with, said Roger Abrams, dean of Rutgers School of Law in Newark.
Collective bargaining brought about the current arbitration and free agency system, which Axinn described as a sort of “private arrangement that replaces antitrust laws.” When owners got together and decided not to pursue any free agents in 1985, the players convinced a court that the collusion violated their collective bargaining agreement.
But, lacking the protection of antitrust laws, players cannot stop owners from imposing a salary cap of their choosing, Abrams said. industries where companies rejoice in a rival’s demise, sports teams are vitally interested in the health, or at least the continued existence, of the other teams.
Sens. Howard Metzenbaum, D-Ohio, and Orrin Hatch, R-Utah, say the 1994 season still might be resuscitated if the Senate adopts their legislation, which would allow players to sue owners under antitrust laws if the owners unilaterally imposed new labor conditions, such as a salary cap. The bill also would bar automatic salary reductions during such a lawsuit.